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Hertfordshire Police v Van Colle [2008] UKHL 50 House of Lords

The appeal involved two separate cases: Van Colle and Smith. The Van Colle case was brought under the Human Rights Act 1998 based on Art 2 (Right to life) of the Convention and did not raise the common law of negligence. The Smith case was based in negligence alone.

Van Colle:

Giles Van Colle employed Mr Brougham as a technician at his optical practice. Three months into the employment the two had an argument resulting in a physical confrontation. Following this, Mr Brougham never returned to work. Six weeks later the police found items belonging to the optical practice, along with other stolen items at Mr Brougham's home. He was arrested and charged with theft. Mr Brougham then started to harass Mr Van Colle to pressure him into not giving evidence. The harassment included torching his car and making death threats. Mr Van Colle reported this to the police who arranged a meeting to take a statement with a view to arrest Brougham. Unfortunately the meeting never took place as Mr Brougham shot and killed Mr Van Colle on his way home from work. Mr Brougham was convicted of murder. Mr Van Colle's parents brought an action against the police alleging violation of Art 2 and 8. The trial judge found for the claimant and awarded damages. The Court of Appeal upheld that decision.

Smith:

Smith lived with his lover Gareth Jeffrey. He then ended the relationship and Jeffrey assaulted him. Sometime later Smith moved away but maintained contact with Jeffrey. Jeffrey wanted to resume the relationship but Smith did not. Jefferies then started sending abusive and threatening texts which included death threats. Smith contacted the police several times in relation to the threats and told them of the previous violence. Jeffrey eventually attacked Smith with a hammer causing him three fractures to the skull and brain damage. Smith brought an action against the police for their failure to provide adequate protection. The police applied to have the case struck out which was granted by the trial judge. The Court of Appeal however, reversed the decision and the Police appealed.

Held:

Van Colle:

Appeal allowed. According to Osman v UK a positive obligation to prevent death arises for public authorities only where the authority knew, or ought to have known, of the existence of a real and immediate risk to life. Whilst Van Colle was to be a witness and therefore within the class of persons to whom a duty to protect might arise, the crime for which he was a witness was of a minor nature and Mr Brougham did not have a history of violence. The threats were intimidating but not sufficiently serious to suggest that Mr Van Colle's life was endangered. Therefore no obligation arose to take reasonable steps to prevent the killing and thereby no violation of Art 2.

Smith:

Appeal allowed. No duty of care was owed by the police. The case fell squarely within the principle established in Hill v CC Yorkshire. The common law of negligence should not be extended to comply with Convention rights. A separate cause of action exists and should be pleaded in appropriate cases.
 
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